Oral Answers to Questions
Debate between Paul Burstow and Heidi Alexander(10 years, 6 months ago)
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Paul Burstow
I hope the hon. Lady will forgive me, but I will make some progress, just as the hon. Gentleman did earlier.
Amendment 11B concerns the Human Rights Act, and I thank Ministers for keeping an open mind and for listening seriously to the concerns raised by Lord Low and others, and to me and other hon. Members who were concerned that an opportunity was being missed to close a gap. Legislation under the previous Government partially but not completely closed the gap, as a result of which those cared for in their own homes did not have the benefit of Human Rights Act protection. The amendment, which was agreed without a vote in the other place, gives that protection. It is the end of a story of seven years of dealing with a gap in the law that was opened by a court judgment. I am grateful that, notwithstanding the difficulties of our bicameral parliamentary process, it has worked at its best on this occasion, because it has meant that concerns raised through the Joint Committee that I chaired, through the Joint Human Rights Committee’s report and by Members in the other place, have now been comprehensively addressed.
Having said that, will the Minister confirm that a person who avails themselves of provisions in the Bill that allow them, as a self-funder, to ask their local authority to arrange their care at the point at which they start to benefit from the means-testing arrangements, and therefore have some support from the local authority, will then be covered by the Human Rights Act?
I would also like to thank the Minister for listening carefully to what has been said at each stage in the passage of the Bill, in both Houses, in respect of the trust special administration regime. It is important to emphasise that the approach set out by the previous Labour Government recognised that trust special administration was a last resort. Earl Howe has emphasised that in the other place. He was very clear that there are powers available to the Trust Development Authority and to Monitor to intervene as necessary in order to avoid trust special administration ever being triggered in the first place. I commend to Members the passage in House of Lords Hansard in which he sets out clearly all the steps that would need to be taken:
“Trust special administrators would be appointed—and I make this point emphatically—only when all other suitable processes to develop sustainable, good healthcare have been exhausted.”—[Official Report, House of Lords, 7 May 2014; Vol. 753, c. 1496.]
It is worth picking up on the point made by the hon. Member for Copeland. Having been given the opportunity to chair a committee looking at the guidance, I think that some of the points he made in his amendments today are exactly the sort that ought to be given proper consideration in the guidance. I hope that he, other Front Benchers, and indeed other hon. Members who have experience of the only two trust special administration processes that have taken place to date, will offer the committee their views and insights so that we can ensure that the advice we give the Government on guidance is as good and as clear as possible.
As was made very clear in the other place, we are not talking about a power that will effectively enable a wholesale reorganisation of the health economy. The Bill is very clear that this is about those matters that might require necessary and consequential changes. The amendments that were agreed in the other place, without a vote, make it clear that the essential services of trusts that find themselves drawn into a trust special administration process will be a proper consideration in the decision-making process.
It is curious that the Labour party now seems to want us to look at access in a different way from the way in which the trust special administration process that it put in place provided for. In other words, why was there no test on access with regard to the trust that was in special administration under its arrangements? Why did that not matter then but does matter now?
I think that the Government have listened very closely to what has been said and changed the Bill in a way that reflects the concerns that I described on Report. We will have the chance to comment further on the guidance—I hope that the hon. Member for Lewisham East (Heidi Alexander) and others will offer input into that—which will give us another opportunity to ensure that it is as tight and effective as possible on those very rare occasions when it is used.
I hope that consideration of the Bill will be concluded today and that it will make the difference to well-being, as a central principle, and to parity between those who receive care and those who give it. That is what the Bill does, and they are great things, and it is about time that they were on the statute book.
Heidi Alexander (Lewisham East) (Lab)
My hon. Friend the Member for Copeland (Mr Reed) has already set out the case for the Opposition’s amendment in lieu of their lordships’ amendments regarding the TSA regime, and I wholeheartedly agree with all that he said.
I would like to focus my remarks on why I believe that their lordships’ amendments do not undo the damage that lies at the heart of clause 119. While some people—I would probably include the right hon. Member for Sutton and Cheam (Paul Burstow) in this—seem to think that their lordships’ amendments are something of a cause for celebration, in my view the changes fall far short of what is really needed, which is the complete deletion of clause 119. Even with these latest amendments, clause 119 removes the legal protection for hospitals that face the axe because they happen to be located next to a failing trust that has been placed into administration. We know that this legal protection was vital in the case of Lewisham. The Government, having been told by the courts that they broke the law, are now simply changing the law so that in future they can close much-needed services in successful hospitals to deal with financial problems in others.
It has been suggested that the Lords amendments to clause 119 arose from discussions sparked off during debate on Report in this place. Yet the new clause we discussed then, which was tabled by, but then not supported by, the right hon. Member for Sutton and Cheam was very different from what is before us today. Of course, we all remember what happened last time: the Lib Dems were simply bought off with the offer of chairing a committee. It is therefore worth comparing what we discussed on Report and what we are debating now. If I recall correctly, the new clause that the right hon. Gentleman had in his name a month or so ago proposed that the commissioners of services in hospitals that fall outside a trust in administration should have, in effect, a power of veto over recommendations put forward by an administrator.
Paul Burstow
No, it did not. It provided for parity of esteem between commissioners of affected trusts compared with the commissioner of the service that was failing.
Heidi Alexander
I am grateful for the right hon. Gentleman’s intervention. I pressed him on this very point on 11 March, when I asked whether his new clause
“would provide a direct veto to commissioners of services at a hospital located outside the trust to which an administrator has been appointed.”
He responded:
“That is the intention, so the new clause has been drafted to have that effect.”—[Official Report, 11 March 2014; Vol. 577, c. 244.]
The new clause proposed in March—we had a full debate and discussion about it—suggested that if the commissioners were content with the proposals put forward by a TSA, full public and patient consultation would kick in, whereas if the commissioners were not content, they would call a halt to the process. As I said, I pressed the right hon. Gentleman on that, and he was clear in the remarks that he made at the time.
That is not what we are debating now. The amendment that was passed in the other place last week gives statutory consultation rights to commissioners of services in hospitals that fall outside the trust to which an administrator has been appointed. It suggests that changes to essential services that are proposed by the administrator but delivered outside the failing trust should not be caused harm, while seemingly leaving the definitions of “harm” and “essential services” to NHS England. The amended clause states that, should there be a difference of opinion between commissioners, NHS England will act as some sort of referee and have the final say.
I contend that what we have before us today is very, very different from what was mooted in this place on Report. The changes to the Bill that the Government have introduced in the Lords are minor at best, and confusing and irrelevant at worst.
Heidi Alexander
The right hon. Gentleman is shaking his head, and I can see that he disagrees with me about this, so let us look at the committee which has been set up and which he is chairing. Is it actually going to make any difference? My fear is that it is just camouflage for the fundamental damage that will be caused by clause 119. The committee will supposedly look at the rules that govern the use of the trust special administration regime. The most important rules that govern the use of the TSA regime are being set today, in this House and by this Bill.
Paul Burstow
I am grateful to the hon. Lady for giving way; she is being very gracious. The reason the Lords amendment is important is that it makes it clear that essential services in other trusts are now relevant to the guidance at which my committee will be looking.
Heidi Alexander
One person’s definition of “essential” might not be the same as that of another person.
The Lords amendment tinkers at the edges of clause 119. Although it offers some marginal improvement on the Government’s original clause, it does not go far enough. I would vote for deletion again if I could, but parliamentary procedure does not afford me that opportunity. There is no doubt in my mind that this clause, even with the latest amendment, will allow more fast-track hospital closures in future. It removes the protection that existed in law, which allowed Lewisham council and the Save Lewisham Hospital campaign to take a case against the Government and win.
The latest amendment may guarantee another layer of consultation, but it contains no overall guarantee that services will not be closed at successful hospitals to balance the books elsewhere. Is the Minister or the right hon. Member for Sutton and Cheam able to say unequivocally that had this amended clause been on the statute book at the time of the TSA regime in south London, the future of Lewisham’s A and E and maternity service would have been secure? They cannot, because it is not the case.
In conclusion, I do not accept that their lordships’ amendment provides the protection that some believe it provides. The amended clause still extends and augments powers for TSAs and NHS bureaucrats. Even with the increased checks and balances contained within their lordships’ amendments, the TSA process is still a chaotic and rushed mechanism for closing hospital services. It plunges local health economies into desperate uncertainty and takes power away from the public and clinicians.
I do not believe this is the way to make the sorts of changes our health service requires to meet the challenges of the 21st century. I have maintained that position throughout the passage of the Bill and I make no apology for sticking to my convictions to the end. The public do not want more fast-tracked hospital closures, but this Bill legislates for them.
Care Bill [Lords]
Debate between Paul Burstow and Heidi Alexander(10 years, 8 months ago)
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Paul Burstow
I am grateful for that intervention. As I develop my argument, I think the right hon. Gentleman will hear where I sit on the spectrum of viewpoints. He may be interested in what I am about to say.
The second principle is that commissioners who have successfully managed the quality and demand in their area should not have decision making taken away from them. Decision making can be removed from the trusts that are failing, and this may mean that commissioners of such bodies have to accept unwelcome changes. But local decision making should remain in place where a local commissioner and provider are working successfully together. Thus the first purpose of my new clause is to seek to place with the commissioners of services at NHS foundation trusts and NHS trusts that are not in special administration the same decision-making powers as are given to commissioners of services of NHS trusts that have been found to fail and are in special administration.
At present the Bill creates two classes of commissioner. Where there is a trust in special administration, the clause provides that commissioners of services at that trust are able to define the services that the failing trust should continue to provide. The commissioners are thus entitled to ring-fence certain services that they feel must be preserved for the benefit of local patients. They are, in effect, given a veto on the extent of changes that can be made to a troubled trust because of the statutory objectives set for the administrator. The commissioners are thus able to act to preserve local services.
However, the present text of section 65DA does not give the same rights to the commissioners of adjoining trusts. They are relegated to second-class status. Clause 119 as drafted envisages that a special administrator is entitled to make recommendations for changes at trusts other than the trust in special administration which are not approved by local commissioners. In its present form clause 119 does not provide that the commissioners of the services at trusts other than the trust in special administration enjoy the same veto over the extent of any changes as the commissioners of a trust in special administration. There is a fundamental lack of parity of esteem between the different organisations and the different commissioners in a locality. It is that inequality that I am seeking to change.
Heidi Alexander
I am grateful to the right hon. Gentleman. Will he explain to me whether, if his new clause had been on the statute book at the time of the south London TSA process, only Lewisham clinical commissioning group would have had a veto over services at Lewisham hospital that it was proposed to change, or whether commissioners of services at Lewisham hospital, such as Greenwich, Bexley or Southwark CCGs, would also have had such a veto? Exactly who is he talking about?
Paul Burstow
What I am saying is that in a situation where trusts that are not themselves in special administration are being brought into the process, the commissioners of those trusts should be given equal standing in the process. At present they are not given the same standing as the commissioner of the failing service. The commissioner of the failing service is given a greater role in determining the outcome of the process. I want to ensure that if we use this process in future, in the way the Government intend, there is a parity of esteem between all commissioners, representing the clinical interests in the area and the interests of patients.
Paul Burstow
Forgive me, but I will not give way. I want to ensure that others have a chance to debate the clause and my new clause, and I need to make some progress.
Why therefore should responsible commissioners who have worked successfully with their local NHS trusts to produce a sustainable set of NHS services be prejudiced by the failure of a commissioner who has not secured such an outcome? Clause 119 risks penalising responsible co-operation between commissioners and providers, and it gives a veto to the potentially irresponsible. My new clause removes that inequality by providing that commissioners of services at an NHS trust that is affected by any proposed changes should be placed in the same position as the commissioner of those services covered by the administration process.
Secondly, my new clause makes it clear that, if the special administrator issues a final report recommending changes at a trust that is not in special administration, the decision makers to decide whether those changes ought to be accepted should be the commissioners of services at the successful trust and not the trust special administrator, the Secretary of State or Monitor. Clause 119 envisages that the TSA can recommend changes at an NHS foundation trust which is not in special administration, but fails to provide any mechanism to put those changes into effect. It follows that the recommendation from the TSA is left hanging in the air. The TSA cannot impose decisions on a reluctant CCG, because the Secretary of State is unable to direct CCGs and cannot, through Monitor, require changes to the services by the foundation trusts.
When making submissions to the Court of Appeal in the Lewisham case, leading counsel for the Government accepted that chapter 5A of the Health Act 2009 was a purely procedural statute. Chapter 5A does not provide any additional powers for the Secretary of State or Monitor. It simply defines the process that must be followed before existing powers may be exercised. The TSA takes over the role of the board of the trust in administration, so that it can make decisions about that organisation. The Secretary of State and Monitor have powers to dissolve NHS bodies, but the TSA does not have a role with regard to any trust that it is not administering. There is therefore a fundamental problem with clause 119 in that particular case, and that is what my new clause attempts to address.
I am proposing a new clause that would make it clear that a TSA report is to be provided to commissioners of services at any affected trust who are the decision makers as to whether they wish to accept or reject the recommendations. They are the relevant decision makers —in other words, the local commissioners.
Paul Burstow
I will conclude, because I want to ensure that there is time for other people to speak. I am sure that the hon. Lady will make a speech. If she comments on my remarks, she might be gracious enough to allow me to intervene to clarify if she is still unclear.
Obviously, if the local commissioners decide that they are minded to accept recommendations, local people who use services provided by trusts that are not deemed to be failing should not have changes foisted on them without proper consultation.
In conclusion, I am grateful to the Government for what they have already done by including Healthwatch and local authorities as consultees in the process, but we need to go further to ensure that all the commissioners who we in this House, under the 2012 Act, said should be the primary decision makers in arranging health care should be treated the same and have a genuine say in any trust special administration process. That is an essential safeguard, but it is not clear at the moment; it needs to be clear in the future, so that we ensure that this process works in the interests of patients and the local public.
Heidi Alexander
I want to do two things in my contribution: first, to speak in support of amendment 30, which would delete clause 119; and, secondly, to make a few comments on new clause 16, which was tabled by the right hon. Member for Sutton and Cheam (Paul Burstow). I would be content to support the right hon. Gentleman’s new clause, but I have some reservations and some questions that I would like his assistance in answering.
I do not want to rehearse everything that has been said about the case of Lewisham and the trust special administration process that took place in south London. My hon. Friend the Member for Lewisham West and Penge (Jim Dowd) summed up well the feelings of frustration and anger that existed in Lewisham at the time. Like him, I do not wish to inflict that process on other communities across the country.
Heidi Alexander
That is useful. I am sure that Members are grateful to hear that from the Minister, but we know that there are many trusts in serious financial difficulties. Given the huge pressures on the NHS at the moment, this regime could be applied in many more places in the future. The truth of the matter is that the TSA regime will be used as a steamroller to force through the closure and downgrading of hospital services with limited public consultation, using a process that is set up in a way that creates public scepticism and mistrust from the word go.
The Government want to change the law to allow them to do elsewhere what the courts told them they could not do in Lewisham. As I have said already, I would not want to inflict that chaos on anyone else. It damages trust not only in NHS leaders who are meant to be leading change but in our democracy.
I wish to say a few words about new clause 16. As I have already said, I will vote for the new clause if the right hon. Member for Sutton and Cheam pushes it to a vote this evening, because it offers a limited improvement on clause 119. None the less, it raises its own set of questions. The new clause leaves clause 119 in the Bill, so it still allows an administrator appointed to a failing hospital trust to make recommendations about services provided at successful neighbouring hospitals, which are not part of the trust to which the administrator has been appointed.
As I understand it, the right hon. Gentleman’s new clause would give power to the commissioners of such services at the affected hospital outside the failing trust to have some sort of veto over whether the recommendations go any further. It suggests that if the commissioners of services at the affected hospital, such as Lewisham, agree with the changes being proposed, full public and patient consultation would kick in, consistent with the normal levels of communication and engagement that are required in full-service reconfigurations. If the local commissioners disagree with the recommendations, they can, if I understand his new clause correctly, call the process to a complete halt. I can see why that has some attractions, because it seems to provide some kind of brake on the all-encompassing powers of an administrator, and for that reason I am content to support it. However, it does not provide an entirely coherent solution to the problem that lies at the heart of clause 119.
Paul Burstow
The hon. Lady is helpfully setting out her concerns and her support for the new clause. The first proposition must be that we should never even get to that stage, so we need to have much better processes in place beforehand, and I hope that we will hear something about that from the Minister. More importantly, the commissioners, all of whom have a stake in a local health economy—the different trusts—ought to be around the table to sign off on what a TSA will actually do.
Heidi Alexander
I am grateful to the right hon. Gentleman for that answer, but I am still not clear whether the new clause would provide a direct veto to commissioners of services at a hospital located outside the trust to which an administrator has been appointed.
Paul Burstow
That is the intention, so the new clause has been drafted to have that effect. We will hear shortly whether the Government find it to be technically deficient.
Heidi Alexander
I am sorry to be down in the detail of the new clause, but I think that it is very important, not least because many of us have received hundreds of e-mails about this. We need clarity on which commissioners are being given an effective power of veto by the new clause. Is it just the primary commissioner of services at a hospital, or does it go wider than that? To take the Lewisham example, it is not clear whether the power of veto would be given only to Lewisham CCG or also to the commissioners of services at Lewisham hospital, such as Greenwich or Bexley CCGs.
It is also not clear from new clause 16 whether there is a definite guarantee that full consultation would kick in if commissioners agreed to the recommendations of the TSA, because with reference to commissioners it includes the words
“if they are so minded”.
It is not clear what would happen if they were not so minded. Where is the redress for the public in that?
Another concern about new clause 16 is that if commissioners of services at a trust outside the failing trust disagree with the TSA’s proposals, potentially millions could have been spent bringing in the administrator and the management consultants and working up a whole series of proposals, but it could then be brought to a halt by a group of commissioners. I cannot help but question whether it would not be better either to apply the TSA regime to one individual trust or to go through a proper reconfiguration process, with all the safeguards that would include.
I am also intrigued as to why the right hon. Member for Sutton and Cheam tabled new clause 16 at this time. It is quite detailed, and given that he was a member of the Public Bill Committee, it might have been wise to introduce it in Committee and thrash out the detail there. I would like to add that he has always struck me as a man of principle. He has a deep understanding of how the NHS works and, I believe, a deep commitment to tackling the care crisis we face. However, tabling the new clause as some kind of alternative to voting against clause 119 seems to me to be tinkering at the edges. What we really need to do is vote to remove that clause from the Bill, because it poses a significant danger to hospitals across the country.
I am conscious that I have spoken for a long time, so I will say just a few words in conclusion. We know that the Conservatives stated in their manifesto that they would stop the forced closure of A and E departments and maternity wards. We know that in the coalition agreement both the Liberal Democrats and the Conservatives talked about stopping the centrally dictated closure of A and E departments and maternity wards. The truth is that neither the Lib Dems nor the Conservatives are stopping these closures; instead, they are legislating for them. They are paving the way for a wholesale programme of hospital closures and downgrades. We might stop them if we vote for new clause 16, but for me “might” is not good enough. In my view, amendment 30, which would delete clause 119, is our best hope for putting the Lewisham debacle behind us and providing the public with a fair and transparent means of making decisions about the public service that matters most to people—the NHS.
Adult Social Care
Debate between Paul Burstow and Heidi Alexander(12 years, 4 months ago)
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Paul Burstow
My hon. Friend is absolutely right to highlight that issue, which the Low Pay Commission has commented on over a number of years, including before this Government came into office. In our White Paper, we make it very clear that local authorities, as the commissioners of such services, must be mindful of their responsibilities in ensuring that the resources they provide to providers are sufficient to allow them to fulfil their legal obligations.
Heidi Alexander (Lewisham East) (Lab)
The Minister talks about the financial pressures faced by local authorities in providing care to elderly and disabled residents, but is he aware that the cost to local authorities of self-funders who have to fall back on the state is in the region of £1 billion a year? Does he agree that that is a very unpredictable thing for local authorities to deal with? What proposals does he have to help local authorities in that regard?
Paul Burstow
I am grateful to the hon. Lady for her question, because it allows me to talk about some of the points I think will directly address it. Reform of our care and support system is about more than just who pays for care; it is also about some other very important issues. A central proposition in the White Paper we published last week concerns the move from a service focused on managing crisis, and often not doing so very well, to one focused on supporting people’s well-being by concentrating on early intervention and prevention. That is why, alongside the White Paper, we published a draft Bill that will underpin the reforms we intend to make, consolidating, simplifying and modernising the legislation. The Bill sets out for the first time in statute some very clear governing principles about how decisions are made in social care, focusing on people’s well-being and living by the idea set out by our first White Paper in government of “No decision about me, without me”.
The Bill sets out a number of important changes that go to the heart of people being able to plan, prepare and have proper choice about the care available to them. First, it makes it a requirement for local authorities to ensure that there is a universal offer of information and advice so that people can plan and prepare. Secondly, it requires for the first time local authorities to focus on prevention. Thirdly, it requires a sufficiency of quality care so that choice is available to people locally. Fourthly, it requires integration and co-operation not just between the NHS and social care but between those agencies and housing.
The Bill will not only do that; it will simplify the point of entry into the state system. It will ensure consistent national eligibility and, for the first time in Government legislation, will ensure that there are rights for carers not just to an assessment of their needs but to support for those needs. It will also deal with the often mentioned issue of protection from disruption when people move from one part of the country to another or when a child moves from children’s services to adult services. It will guarantee continuity of services, which is not currently provided for.
Personal budgets, which were started by the Opposition but have not stuck well because of the legal framework, will for the first time be given a clear legal basis. I am delighted to say that whereas when this Government came to office in 2010 we inherited 168,000 people receiving personal budgets, by March of this year 432,000 people were benefiting from them. There will also be clear legal duties on the NHS, police and councils to safeguard people.
At the heart of our White Paper reforms is the notion that we need less variability on quality, to ensure that providers are responsible for driving up quality and accountable for doing just that, and to have more and open information about the quality of provision. That is why our provider quality profiles will provide that information in a way that will allow people to compare and rate providers for the first time and why we are putting an extra £32.5 million in to support those services.
Social Care Funding
Debate between Paul Burstow and Heidi Alexander(13 years ago)
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Paul Burstow
I am not seeking to hide or resile from that. What I am trying to do is demonstrate that the picture is not uniform or consistent. I want to quote some further evidence that supports that point of view, but first let me make it clear that of the £900 million that the ADASS survey identified as having been taken out of social care spend, 70p in every pound came not from cuts in front-line services but from service efficiencies and redesign. That very point was made by a number of hon. Members in the debate.
Heidi Alexander
The Minister is talking about efficiency savings within adult social care services, but would he accept that as every day goes by, demand for those services is increasing because of the needs within the existing population? May I press him a little more on the point made by my hon. Friend the Member for Leicester West (Liz Kendall)? Does he not think that his colleagues should be making greater protestations about decisions taken within local authorities? Rather than focusing on the bins, as my hon. Friend said, we should be talking about the needs of the elderly population and perhaps giving local authorities a bit more direction. Will the Minister tell us his views on that?
Paul Burstow
I do not believe we should micro-manage the decisions of every local authority. We should not dictate to local authorities about how to manage their resources. One message that came from local government before the election, which we, as a coalition, have responded to, was the desire to remove ring fences from budgets to give councils maximum flexibility. Total Place is exactly what that is about. It is about using budgets smartly to meet local needs in the best way to fit the community’s circumstances. In the past, such flexibility was constrained by the number of ring fences.
I have also picked up on some scepticism in the debate about the additional funding that is being provided through the spending review for adult social care via the NHS. There was some question as to whether or not that money was getting through. Of the £648 million for this year, nearly half has already been transferred—we know that from surveys that we have conducted—and agreements are in place to transfer the remainder. As to the reference to the money for carers, that was not part of this social care transfer; it was a separate requirement under the NHS operating framework. I am more than happy to debate that at a later stage, but right now I need to try to cover the main points in this debate.
Both primary care trusts and local authorities are positive about the development of these particular funds. They have seen them as a lever for more joint planning and co-operation. The feedback that we have had to date shows that the money is being spent on what it was intended for—prevention and rehabilitation, re-ablement, early supported hospital discharge schemes and integrated crisis response services. I am saying not that the money is a panacea but that those funds are making a difference in the communities in which they are being used smartly by the NHS and social care organisations. Times are tough and I am not going to pretend otherwise. Although I can present a relatively positive picture nationally, there are areas where cuts to front-line adult social care services are really beginning to bite.
Although some councils have coped with the cuts by tightening their eligibility criteria, it is not fair to suggest that that started in May last year. The trend started back in 2005. The way in which councils define and apply eligibility criteria is not consistent from one borough to the next. We will address those issues of definition as part of the review that we are taking forward in the White Paper.